Weekend Edition Nº170 by eulawlive

Nº170

JANUARY 20

2024

JOHN MORIJN AND GABRIEL N. TOGGENBURG

THE EU’S AGENCY FOR FUNDAMENTAL RIGHTS THE PAST, THE PRESENT AND THE FUTURE OF AN ATYPICAL “AGENCY”

Nº170 · JANUARY 20, 2024

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The EU’s Agency for Fundamental Rights The Past, the Present and the Future of an Atypical “Agency” John Morijn and Gabriel N. Toggenburg1

1. Introduction The European Union’s law and policies in the fundamental rights area have developed tremendously over the last 20 years. Human and fundamental rights have moved from the periphery into the centre of external and internal policy making.2 The European Union Agency for Fundamental Rights (“FRA”), established in 2007 is a concrete institutional expression of this trend. Recently the Agency was equipped with a new mandate3 and soon a new, the Agency’s third, Director will take office.4 Moreover, in 2024 the Agency will face a new European Commission and a newly composed European Parliament. It appears therefore timely to give a brief assessment on where the Agency stands today and where it might develop in the years to come. Before doing so we briefly recall the Agency’s foundation.

Human and fundamental rights have moved from the periphery into the centre of external and internal policy making

1. Gabriel N. Toggenburg is an Honorary Professor for Human Rights and European Union Law at the University of Graz and Head of Sector Human Rights Structures and Mechanism at FRA. All views expressed here are of a strictly personal nature and can by no means be attributed to FRA. John Morijn is a Fellow in Law & Public Policy at the Princeton School of Public and International Affairs and a Professor of law & politics in international relations at the University of Groningen. He is also chairing the Scientific Committee of the FRA. All views expressed here are of a strictly personal nature and can by no means be attributed to FRA. 2. For a recent overview and assessment see e.g. Gabriel N. Toggenburg, The EU Human Rights regime: development, actors, policy framework and effectiveness, Bård A Andreassen (ed.), Politics of international human rights law: Governance, distributive justice and international relations, Ed Elgar Series on Research Handbooks in International Human Rights Law 2023, pp. 409-439. 3. See Council Regulation (EU) 2022/555 of 5 April 2022 amending Regulation (EC) No 168/2007 establishing a European Union Agency for Fundamental Rights. 4. On 15 December 2023 the agency’s Management Board appointed Sirpa Rautio as the third Director of FRA (after Morten Kjaerum and Michael O’Flaherty). She is currently Director of the Finnish Human Rights Centre and Chair of the European Network of National Human Rights Institutions (ENNHRI). The new Director will take office in March 2024.

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2. The Agency’s past: origins and mandate

John Morijn and Gabriel N. Toggenburg Photo by Luc Schwartz (FRA)

Back in 1998, a group of prominent human rights experts called from the hills of Fiesole, namely the (EUI) on the EU to develop a ‘comprehensive and effective internal human rights policy’. In their view, the deepening of the EU (single market, increasing cooperation in the area of policy and security matters, increasing powers of the EU administration), the upcoming enlargement but also the political trends of increasing ethnic hatred within Europe as well as ‘the tendency towards a “fortress Europe” which is hostile to “outsiders” and discourages refugees and asylum-seekers’ required a new comprehensive policy. Their recommendation was for it to include the creation of a ‘European Union Human Rights Monitoring Agency’ based on the then-existing European Monitoring Centre on Racism and Xenophobia (the EUMC located in Vienna).5 The idea did not raise major interest but the straw-fire of the first rule of law debate in the context of the so called ‘Austrian crisis’ in 2000 provided oxygen to the idea of a body that could provide reliable data and analysis in order to objectively assess Member States’ performance in relation to the EU’s foundational values.6 Finally, in 2007 a European Union Agency for Fundamental Rights (FRA) was established. However, its tender mandate raised the question whether this new actor would just debate the ‘Sex of Angels’ or indeed help to improve Europe’s Human Rights Performance?7

The Agency differs from others in terms of its institutional design. The members of its Management Board are independent experts, it has a dedicated Scientific Committee to ensure scientific soundness of output consisting of independent scholars, and, finally, the Agency has to ‘fulfil its tasks in complete independence’.8 The normative basis of the FRA consisted of a Founding Regulation, a Multiannual Framework and the Agency’s rules of procedure. The Founding Regulation establishes as the Agency’s very objective the provision of ‘assistance and expertise in the field of fundamental rights’ to institutions and bodies of the (then) EC as well as to its Member States (not however to third States, avoiding an all too large overlap with the territorial scope of the Council of Europe). The Agency’s mandate is to support and encourage the EU and its Member States ‘to fully respect fundamental rights’ within their respective fields of competence. A rather weak legal mandate (no 5. Philip Alston and Joseph H.H. Weiler, ‘Leading By Example: A Human Rights Agenda for the European Union for the Year 2000’ (Florence: European University Institute, 1998. 6. Gabriel N. Toggenburg, “La crisi austriaca: delicati equilibrismi sospesi tra molte dimensioni”, 2 Diritto pubblico comparato ed europeo (2001), 735–756. 7. Gabriel N. Toggenburg, ‘The Role of the New EU Fundamental Rights Agency: Debating the‘Sex of Angels or Improving Europe’s Human Rights Performance?’, 3 ELR (2008), 385–398. 8. Art. 16 of the Council Regulation (EC) No 168/2007 of 15 February 2007 as amended by Council Regulation (EU) 2022/555 of 5 April 2022 (the consolidated version of the founding regulation is available here).

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quasi-judicial functions, no binding decisions, no mandate to deal with individual complaints, no systematic screening of draft EU legislation) was thus combined with a wide substantial purview allowing the Agency to provide its ‘assistance and expertise’ across all EU fundamental rights. In fact, the very general formulation of the objective of the Agency’s mandate is its very beauty allowing for a remarkable degree of flexibility. It has led the Agency to publish incident reports on specific issues or on fundamental rights issues in single Member States, create large (admittedly, not uncostly) convening formats like the Fundamental Rights Forum, establish (admittedly just temporary) field presences in the hotspots in Italy and Greece or formally submit (admittedly, so far only once) written evidence and analysis as well as oral input in a hearing before the Court of Justice of the EU.9

The Agency differs from others in terms of its institutional design

This all signals that the potential of the Agency is remarkable. Nevertheless the ‘mandate of FRA’ remained a topic that attracted opposing views and, even worse, myths that re-appeared like an undead. It was for instance regularly argued that the Multiannual Framework (a Council decision that would every 5 years list the key thematic areas of the agency’s activities) would compromise the Agency’s independence;10 that the Agency could not issue country-reports; or that the Agency could not deal with the fundamental rights compatibility of draft EU legislation.11 Another evergreen was the question, whether the Agency would after the entry into force of the Lisbon treaty hold a mandate to deal – upon request – with matters of police and judicial cooperation in criminal matters. The legal services of Council and European Parliament replied in the negative to this question whereas the lawyers of the Commission and the Agency argued that 1 December 2009 had automatically ‘Lisbonised’ the Agency’s mandate and expanded it towards the third pillar – a view that was soon confirmed by the institutional practice with even the Council requesting the Agency to become active in this policy field of obvious fundamental rights relevance.

The ‘mandate of FRA’ remained a topic that attracted opposing views and, even worse, myths that re-appeared like an undead

9. Concerning C-817/19 concerning the interpretation and validity of the PNR Directive (Grand Chamber ruling delivered on 21 June 2022). 10. What was compromised was the agency’s autonomy, not its independence. On this important distinction see Toggenburg, Grundrechteschutz durch Menschenrechtsinstitutionen: Die EU und ihre Grundrechteagentur, in Christoph Grabenwarter (ed.), Enzyklopädie Europarecht Europäischer Grundrechteschutz, Band 2 der Enzyklopädie Europarecht, Nomos, 2021, S. 1231-1259, at 1242-1244. 11. Of course, the devil is in the detail. To give an example: while the Agency is explicitly excluded from mimicking the Court of Justice by dealing with the legality of EU acts, it can very well be requested by the EU co-legislators to take a position on the ‘compatibility’ of aspects of draft EU legislation with fundamental rights (as in fact the Agency has often done, for a list of such opinion see here).

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While the views on what the Agency is (and, consequently, expectations vis-à-vis it) differed, soon an agreement among stakeholders emerged: the Agency proved a success story. It developed into a trusted partner and a reliable source of information and data across the entire spectrum of actors. Two independent external evaluations based on hundreds of interviews applauded the quality of the Agency’s work and recognised its added value in the EU’s fundamental rights landscape.12 But it was necessary to further strengthen it.

The Agency proved a success story. It developed into a trusted partner and a reliable source of information and data across the entire spectrum of actors

3. The Agency’s present: current priorities and challenges In April 2022 a Regulation entered into force revising the Agency’s mandate. The revision was designed by the Commission as a technical facelift adapting it with some delay to the Post-Lisbon-reality. While major mandate limitations (such as the fact that FRA opinions on draft EU legislation require a prior formal request by the Commission, the Council or the Parliament) remained intact, some heavy ballast was thrown overboard. The revised Founding Regulation does away with the highly inefficient requirement to agree every 5 years in the Council on the broad thematic areas of the Agency’s activities. The programming is now in the hands of the Agency’s Management Board. Secondly, the Regulation clarified that indeed the mandate of the Agency extends to the former third pillar (while stating - that the former second pillar, the common foreign and security policy is beyond the reach of the Agency – in this sense the reform was a pyrrhic victory). Thirdly it introduced a series of technical adjustments throughout the text. All in all, a relevant but rather unexciting development – the technical reform the Commission envisaged from the outset.

12. The 1st independent external evaluation by Ramboll (November 2012) is available here, the 2nd independent external evaluation by Optimity (October 2017) is available here.

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This recently adapted mandate has now taken shape in a quite ambitious strategy adopted by the Management Board (2023-2028). It covers 10 points under 3 general headings. Basically, the Agency will continue to ‘produce information on fundamental rights issues and trends’, ‘provide decision-makers with independent advice and opinions’, ‘carry out research and foresight studies’ (with the latter being a new element), ‘support the implementation of EU laws and policies’ but also to integrate the fundamental rights perspective at EU and national levels. The Agency will assist both the EU and its Member States with the implementation of ‘practical measures to address fundamental rights risks and challenges’. It will continue raising awareness among rights holders and duty bearers and promote dialogue with key partners. At the same time, it promises to stay faithful to its commitment to impeccable research quality by further developing ‘research methods and tools on fundamental rights, including benchmarking, assessment, due diligence tools and fundamental rights indicators’. Indeed, a look in the Agency’s upcoming 2024 work programme shows a wide spectrum of activities. The results of its third, huge LGBTI survey will be published just as the results of the third survey on antisemitism. The next round of its Roma survey will be launched and women’s experience with regard to violence will again be surveyed (though not in all Member States). The Agency will continue to address hate crime and hate speech by also providing technical assistance. It will start strengthening its profile on social rights, moving beyond the field of children rights. In the area of criminal law, the Agency will continue its work on detention conditions (including its database in that regard) and disseminate its findings on the application of the European Arrest Warrant and victims’ rights. Other new FRA findings to be released in 2024 concern experiences with the General Data Protection Regulation (GDPR) or the effects of remote biometric identification systems. In the area of asylum and migration the agency will continue to provide targeted fundamental rights assistance and expertise and provide support to Schengen evaluations. It will further expand its arsenal of training tools, including on the EU Charter of fundamental rights. The agency will also remain a major convening space in the fundamental rights arena - 2024 will see in April the 4th (physical) Fundamental Rights Forum take place and at the end of the year the 2nd (virtual) annual CharterXchange. Against the background of this quite massive workload, it is interesting to note that the Agency carries out only a part of its activities at its own initiative. Many activities are requested by EU institutions, especially the European Commission. And the appetite for FRA input appears to grow. In fact, the requests by EU institutions are recently corroborated by requests laid down directly in binding EU legislation. This recent trend is visible in policy areas such as migration and asylum, sustainable finance and corporate sustainability, digital services or police and judicial cooperation and concerns FRA’s contribution to training (the Europol regulation requires that the training of Europol staff ‘shall be developed in cooperation’ with FRA13), the compulsory consultation of the agency before acts may be issued (for instance, the Directive on Corporate Sustainability requires the European Market and Security Agency to consult FRA before issuing any guidelines).14 Other EU legislation calls on the Agency to sit as permanent members or observers on various boards. For instance, FRA is part of the Consultative Forums of both the European Union Asylum Agency15 and of the European Border and Coast Guard Agency,16 it is also requested to be part of the Platform on Sustainable Finance17 and the ETIAS Fundamental Rights Guidance Board.18 The 13. Art. 41 d of regulation (EU) 2022/991. 14. Art. 28 d of Directive (EU) 2022/2464. For the EBCGA see also Art 76 (1) of Regulation (EU) 2019/1896. 15. Art. 50 (3) of Regulation (EU) 2021/2303. 16. Art. 108 (2) of Regulation (EU) 2019/1896. 17. Art. 20 (1) lit. a iv) of Regulation (EU) 2020/852 (Taxonomy Regulation). 18. Art. 10 (1) of Regulation (EU) 2018/1240.

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European Border and Coast Guard Agency (EBCGA) regulation even refers to FRA as contributing with experts to ‘migration management support teams’ that provide technical and operational reinforcement to Member States.19 In this light it appears quite concerning that the Agency’s budget has remained unchanged over the years – in stark contrast to that of other JHA agencies. In fact – as it was observed not only in academia20 with utmost concern – looking at the overall constellation of all JHA agencies the FRA’s share of the total budget is constantly declining and in fact dwarfed by some EU agencies whose mandate appears to correspond more to current political priorities (the 2023 budget of the EBCGA equals to 34 annual budgets of the FRA). Keeping the Agency’s budget out of sync with the growth of its tasks is not only in contradiction with relevant international standards but also a risk to the FRA’s appropriate delivery on core commitments (some of which are directly linked with the EU’s obligations under international law as the EU monitoring framework under the UN Convention on the Rights of Persons with Disabilities shows).

Against the background of this quite massive workload, it is interesting to note that the Agency carries out only a part of its activities at its own initiative

4. The Agency’s future: potential scenarios For the Agency’s future one may identify 3 potential scenarios: the development of the Agency’s institutional practices on the basis of its current mandate (‘status quo plus’), the revision of its mandate to further strengthen it (‘FRA plus’) or upgrading the Agency to a full-fledged fundamental rights authority as recently requested by LIBE (‘new fundamental rights authority’), ideally laid down in EU primary law. These are not excluding each other. Rather, they could be seen as a roadmap.

a. Status quo plus To remain able to deliver on its tasks to the same degree of satisfaction expressed in the past two external evaluations, the Agency will have to ruthlessly prioritise amongst its numerous thematic projects and many activities. At the same time, it will be key to make clear to the EU budgetary authorities that taking fundamental rights seriously requires proper funding of the EU’s own fundamental rights bodies in a way commensurate with the EU’s obligation of signalling its dedication to Article 2 TEU founding values. In addition, it will be key to further develop channels for additional funding by continuing the fruitful cooperation with the Norway Grants. Additional avenues could be explored by expanding the cooperation with more resource-rich actors such as the EBCGA. Where the Agency’s mandate has weaknesses – for instance in the limitation of submitting opinions on draft EU legislation at the agency’s own initiative – more flexible modes of cooperation ‘with Brussels’ could be envisioned to make sure that the Agency’s input reaches all the relevant corners of the EU’s institutional system at the right time.

19. Art. 2(19) of Regulation (EU) 2019/1896. 20. See the calculations in Jan Wouters and Michal Ovádek, ‘Exploring the Political Role of the EU Fundamental Rights Agency: Mandate, Resources and Opportunities’, in Rosemary Byrne et al., Human Rights Law and Evidence-Based Policy. The Impact of the EU Fundamental Rights Agency, Taylor & Francis 2019.

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b. Fundamental Rights Agency plus Whereas the last revision of the Agency’s mandate was useful, various issues remained unaddressed. The European Parliament, for instance, not only called on the Commission to ‘allocate the FRA an adequately increased budget, in order to fully fulfil its role’ but also to launch a ‘more comprehensive and ambitious revision’ of the Regulation.21 For instance, it called for the right of its LIBE Committee to nominate a member of the FRA Management Board as is the case in the context of other agencies. Importantly, the Parliament points to a problematic aspect of the recent revision of the agency’s mandate, namely that the regular independent external evaluation is now to be commissioned by the Commission (and no longer by FRA). The Parliament calls on the legislator to provide the agency with the mandate to issue opinions on legislative proposals on its own initiative and to comment and contribute to proceedings under Article 7 TEU. Finally, Parliament advocates that also individual Member States, or a group of Member States, should have a right to request FRA to become active. In terms of the agency’s territorial scope, the Parliament argues for also including third countries beyond the Western Balkans such as European Economic Area/European Free Trade Association countries, the UK, or — where deemed appropriate by the FRA Management Board — countries covered by the European neighbourhood policy. These appear to be sensible proposals which would not change the Agency’s nature.

Should the EU want to lead by example and signal maturity and self-confidence, it could become the first international organisation equipped with its own full-fledged human rights institution

21. European Parliament resolution of 20 May 2021 on the proposal for a Council regulation amending Regulation (EC) No 168/2007 establishing a European Union Agency for Fundamental Rights (COM(2020)0225 — 2020/0112R(APP)).

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c. A new Fundamental Rights Authority Should the EU want to lead by example and signal maturity and self-confidence, it could become the first international organisation equipped with its own full-fledged human rights institution. This seems timely given that the EU is increasingly taking up human rights obligations at UN (Convention of the Rights of Persons with Disabilities) and Council of Europe (Istanbul Convention, ECHR) levels. Just as it is recognised that national NHRIs have a ‘great potential and impact’22 for the effective implementation for the ECHR and the supervision of the execution of judgments by the ECtHR, a full-fledged EU level Human Rights Institution would signal that the EU takes its own human rights responsibility very serious. Preparing Parliament’s position on the future amendment of the EU Treaties, its LIBE Committee proposed changing the EU Treaties to allow for ‘the setting up of a European Union Authority for Fundamental Rights, enshrining its independence and introducing the ordinary legislative procedure for adopting and amending its mandate’. The Committee advocates for the agency to become ‘an independent human rights authority, similar to national human rights institutions and in line with the UN General Assembly’s Paris Principles of 1993, to protect and promote the EU Fundamental Rights Charter throughout the policies and practices from Union institutions, bodies, offices and agencies, and from Member States when implementing Union law’. Moreover, so the LIBE Committee continues, the Agency should be entitled to bring actions under Article 263 TFEU ‘on grounds of infringement of the Charter’; to ‘handle complaints’; and to consult, as a matter of principle, the Commission ‘when preparing proposals for legislative acts or recommendations which have an impact on fundamental rights’.23

Conclusion The concerns that led to calls for the establishment of the FRA are as acute 20 years on. In fact, the increasing digitalisation of our lives is posing new threats while old challenges continue. Amongst the latter are violence and harassment on the grounds of gender and sex, various forms of discrimination, racism, antisemitism and attacks on Jews, unacceptable high levels of inequality and poverty, anti-Roma discrimination and segregation in housing to name just a few. The hatred and the tendency towards a ‘fortress Europe’ are nowadays even more of a concern and they are coupled with unprecedented phenomena of rule of law backsliding and migration-related fundamental rights scandals of unknown dimension. In all these areas the EU’s role and impact has increased over the years. The FRA has been tremendously instrumental in informing the EU-level policy and political debate with comparative and objective data and providing valuable evidence-based policy advice. To fully walk their fundamental rights talk, however, in 2024 the new EU institutions will need to equalise the FRA’s budgetary position to that of other JHA agencies, and in doing so, bring it to the level of the relevance of the agency’s tasks.

22. See Recommendation CM/Rec(2021)1 of the Committee of Ministers to Member States on the development and strengthening of effective, pluralist and independent national human rights institutions adopted by the Committee of Ministers on 31 March 2021. The recommendation refers explicitly to “third party intervention before the European Court of Human Rights (on the basis of the Article 36, paragraph 2, of the Convention) and communication with regard to the supervision of the execution of judgments under Article 46, paragraph 2, of the Convention”. 23. Opinion of 10.2.2023 of the Committee on Civil Liberties, Justice and Home Affairs for the Committee on Constitutional Affairs, Proposals of the European Parliament for the amendment of the Treaties, (2022/2051(INL)), Paras 13 and 5. Note that these proposals are not reflected in the resolution as recently adopted in the Plenary.

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SUGGESTED CITATION: John Morijn and Gabriel N. Toggenburg: “The EU’s Agency for Fundamental Rights – the past, the present and the future of an atypical “agency””, EU Law Live Weekend Edition nº 170, https://eulawlive.com/weekend-edition/weekend-edition-no170/